Integrity Commissioner of Nunavut Commissaire à l’intégrité du Nunavut ᐃᒻᒥᒧᑦ ᐊᒡᕕᐊᕈᑎᖃᖅᑕᐃᓕᒪᓂᕐᒧᑦ ᑲᒥᓴᓇ ᓄᓇᕗᒥ Immimut Agviarutiqaqtailimanirmut Kamisana October 23, 2009 The Honourable James Arreak, MLA, Speaker of the Legislative Assembly of Nunavut, Iqaluit, Nunavut Dear Mr. Speaker, Pursuant to section 44 of the Integrity Act, I am submitting my Report concerning Mr. Paul Okalik, MLA. Respectfully, ORIGINAL SIGNED BY Norman Pickell Integrity Commissioner 58 South Street, ᒑᑐᕆᒃ, ᐊᓐᑎᐅᕆᔪ, ᑲᓇᑕ N7A 3L5 ᐅᖄᓚᐅᑖ: 888-398-2785 or (519) 524 2954 ᓱᒃᑲᔪᒃᑯᑦ: (519) 524-5107 58 South Street, Goderich, Ontario, Canada N7A 3L5 Tel: 888-398-2785 or (519) 524 2954 Fax: (519) 524-5107 [email protected] www.integritycom.nu.ca Legislative Assembly of Nunavut Report to the Speaker Re: Mr. Paul Okalik, MLA October 23, 2009 Norman Pickell Integrity Commissioner RE: MR. PAUL OKALIK, MLA Request for a Review: This is a review pursuant to section 36 of the Integrity Act of Nunavut (herein referred to as the “Integrity Act”). Mr. Hunter Tootoo has asked me to review the conduct of Mr. Paul Okalik during the 2008 territorial election campaign. Complainant and Respondent: The Complainant, Mr. Hunter Tootoo, was the Member of the Legislative Assembly (herein referred to as “MLA”) for Iqaluit Centre and a regular member of the Second Legislative Assembly of Nunavut. This means he was not part of the Executive Council of Nunavut in that Assembly. The Respondent, Mr. Paul Okalik, was the MLA for Iqaluit West and the Premier of Nunavut during the Second Legislative Assembly. Both Mr. Tootoo and Mr. Okalik were re-elected in the Third General Election held on October 27, 2008. The Allegations: Mr. Tootoo alleges that Mr. Okalik contravened sections 4(a) and (b) and section 10 of the Integrity Act. Sections 4(a) and (b) of the Act state: 4. Each member shall (a) perform his or her duties of office and arrange his or her private affairs in such a manner as to maintain public confidence and trust in the integrity, objectivity and impartiality of the member; (b) refrain from accepting any remuneration, gift or benefit the acceptance of which might erode public confidence and trust in the integrity, objectivity or impartiality of the member, and in all other respects act in a manner that will bear the closest public scrutiny; Section 10 of the Act states: 2 10. A member shall not use his or her office to seek to influence a decision made or to be made by another person so as to further the member’s private interest or improperly to further another person’s private interest. The basis for Mr. Tootoo’s allegations are fundraising letters which were sent to Deputy Ministers in the Nunavut Government by campaign officials for Mr. Okalik during the election campaign for the Third General Election. The Procedure to Initiate a Review under the Integrity Act: Section 36 of the Act allows any person, including an MLA, to ask the Integrity Commissioner to review the conduct of another MLA. There are certain requirements in the Act that must be met before the Integrity Commissioner can conduct such a review. If the request is coming from someone other than the Premier or the Legislative Assembly, 1. The person requesting the review must have reasonable grounds for believing that there has been a contravention of the Act; 2. The request to the Integrity Commissioner must be in writing; and 3. The facts to support the allegations must be in an affidavit. Background: On October 30, 2008, Mr. Hunter Tootoo sent me a letter by fax. Accompanying his letter was an Affidavit that Mr. Tootoo swore on October 30, 2008. Mr. Tootoo’s letter requested me to review “the conduct of the Premier, the Honourable Paul Okalik.” The letter also said: “I believe Mr. Okalik contravened s. 4(a) & (b) and s. 10 of the [Integrity] Act by attempting to use his position as Premier and his authority over Deputy Ministers to solicit campaign contributions from Deputy Ministers.” Mr. Tootoo’s 11-paragraph Affidavit set out certain allegations in support of his request for the review. On November 3, 2008, I sent a letter to Mr. Okalik with a copy of Mr. Tootoo’s Affidavit. I asked Mr. Okalik to provide me with a written response to the allegations made by Mr. Tootoo. 3 Mr. Okalik sent me his initial written response on November 11, 2008. The final evidence on behalf of Mr. Okalik was received by me on October 15, 2009. His lawyer’s Submissions were sent to me on October 17, 2009. During the course of my Review, I received information – some of it oral, some of it written - from: Mr. Hunter Tootoo - the complainant Mr. Paul Okalik - the subject of this review Mr. Bill Clay - the Principal Secretary to Mr. Okalik when he was Premier Mr. Patrick Orr - the lawyer for Elections Nunavut Ms. Nadine Ciccone - the Financial Agent for Paul Okalik during the election campaign Ms. Anne Crawford - the lawyer for Mr. Okalik My Jurisdiction During the Election Campaign: The conduct of Paul Okalik that I am being asked to review occurred after September 23, 2008 and before October 27, 2008. In other words, it took place during the election campaign leading up to the October 27, 2008 territorial election. In his response to Mr. Tootoo’s allegations, Mr. Okalik urges me to find that the Integrity Act did not apply to him during the election campaign, and hence I do not have jurisdiction to conduct a review. The Integrity Act only applies to MLAs. It does not apply to a person who is not an MLA. Furthermore, my jurisdiction as Integrity Commissioner under the Integrity Act authorizes me to deal only with MLAs. I do not have any power to review the conduct of a person who is not an MLA. On September 18, 2008, the Fourth Session of the Second Legislative Assembly ended. But the writ of election was not issued until September 22, 2008. That means that all those who held office as an MLA on September 18, 2008 remained an MLA until September 22, 2008. However, all of the regular MLAs ceased to be MLAs on September 23, 2008. In fact, there were no regular MLAs in Nunavut from September 23, 2008 until after the territorial election on October 27, 2008. 4 Therefore, if Mr. Okalik had been a regular MLA in the Second Legislative Assembly, I would have no jurisdiction to review his conduct during the election campaign. But Mr. Okalik was the Premier of Nunavut during the Second Legislative Assembly. The Legislative Assembly and Executive Council Act, S.Nu. 2002, c.5, states in part: section 60(1) “There shall be an Executive Council of Nunavut composed of (a) a Premier chosen by the Legislative Assembly from among its members; …” section 63(2) “The person who holds the office of Premier at the time of expiration or dissolution of the Legislative Assembly continues to hold the office of Premier until the next Premier is chosen at the first session of the next Legislative Assembly.” Therefore, I find that the Premier remains an MLA and Premier until the next Premier is chosen after the election. Accordingly, I find that the Integrity Act, including the review provisions, applies to the Premier during an election campaign. Another requirement is that the person who is subject to my review must be an MLA during the time that I conduct my review. Since Mr. Okalik was re-elected in the Third General Election held on October 27, 2008, I have jurisdiction to review his conduct during the election campaign. Such would not have been the case if Mr. Okalik had been defeated on October 27, 2008. Issue: This review is to determine if Mr. Okalik contravened the Integrity Act by the Re-Elect Paul Okalik Campaign soliciting campaign contributions from Deputy Ministers in the Nunavut Government. Burden and Standard of Proof: Generally a person who alleges that an MLA has contravened the Act must establish the allegations by clear and convincing evidence. The standard of proof is high. Undisputed Facts: Most of the facts are agreed upon. These are: 5 1. Mr. Okalik has been the MLA for the constituency of Iqaluit West since April 1, 1999. 2. Mr. Okalik was the Premier of Nunavut for two terms, from April 1, 1999 until November 19, 2008. 3. Mr. Okalik was a candidate in the constituency of Iqaluit West in the general election which was held on October 27, 2008. 4. The Premier holds his position from the time that the Legislative Assembly is dissolved until a Premier is chosen by the next Legislative Assembly. 5. During the election campaign Mr. Okalik announced his intention to seek a third term as Premier should he be re-elected. 6. The Government of Nunavut is divided into various departments, each of which is headed by a non-elected Deputy Minister. 7. Deputy Ministers are appointed to their positions by the Premier and hold the position at the pleasure of the Premier. 8. Deputy Ministers receive annual performance reviews at which time a determination is made whether a Deputy Minister should receive a performance bonus. 9. The Senior Personnel Secretariat makes recommendations to the Premier with respect to performance bonuses. 10. The Premier is the sole person to decide whether to follow the recommendation of the Senior Personnel Secretariat or vary from it. 11. During the election campaign, letters requesting financial contributions to the Re-Elect Paul Okalik Campaign were sent to many individuals and companies. 12. Each fundraising letter was addressed to a specifically named person.